Publication

Annual survey of violations of trade union rights in Ukraine (2009)

Author:yevdem

22.07.2010

Foreword

Since 2008, the global financial and economic crisis has had a massive impact throughout the world on the level of employment. Tens of millions of jobs have been lost, and many millions more workers are still feeling the threat of unemployment. This in turn has made the central task of trade unions, defence and promotion of workers’ rights and decent jobs for all, even more difficult than at any time in recent history. Indeed, in many countries, despite a call by G20 leaders, public authorities and companies have continued to use the crisis as a pretext to weaken and undermine trade union rights.

The ITUC is adamant that the struggle for the universal respect of trade union rights enshrined in the ILO fundamental conventions is needed more than ever before. The ITUC Founding Congress in 2006 mandated the organisation to expose and denounce violations of workers’ rights, wherever they occur. The publication of this Survey is an important part of fulfilling that mandate.

This Survey again records an extensive list of violations suffered by trade unionists struggling to defend workers’ interests, this year in 140 countries. Other violations remain unreported, as working women and men are deprived of the means to have their voices heard, or fear to speak out due to the consequences to their jobs or even to their physical safety. The Survey provides detailed documentation of harassment, intimidation, persecution and, in the worst cases, murder of trade unionists. Killings of trade unionists actually increased by 30% compared to the previous year.

At least 101 trade unionists and labour activists were murdered in 2009 compared to 76 the previous year: 48 were killed in Colombia, 16 in Guatemala, 12 in Honduras, six in Mexico, six in Bangladesh, four in Brazil, three in the Dominican Republic, three in the Philippines, one in India, one in Iraq and one in Nigeria. Colombia was yet again the deadliest country in the world: 22 of the trade unionists who died were senior trade union leaders and five were women. The rise in violence in Guatemala and Honduras is deeply worrying.

A further ten attempted murders and 35 serious death threats are recorded, again mostly in Colombia and Guatemala. Furthermore, many trade unionists remained in prison and were joined by around hundred others in 2009. Many others were arrested in Iran, Honduras, Pakistan, South Korea, Turkey and Zimbabwe, in particular. The general trade union rights’ situation has continued to deteriorate in a number of countries, including Egypt, the Russian Federation, South Korea and Turkey.

Trade union rights continue to be infringed, in many cases with total impunity, and the repression of trade unionists goes on while governments fail to meet their responsibility to ensure that trade union rights are respected and that the people defending these rights are protected. In a number of countries, governments again showed that they are intent on keeping trade unions under their firm control.

Anti-democratic forces continued to target union activity, aware that unions are often in the front line in the defence of democracy. This was evident in Honduras during the post-coup violence and in Guinea during a protest demonstration against the ruling junta which turned into a terrible massacre on 28 September.

Numerous cases of strike-breaking and repression of striking workers were documented in each region. Thousands of workers demonstrating to claim wages, denounce harsh working conditions or the harmful effects of the global financial and economical crisis have faced beatings, arrest and detention, including in Algeria, Belarus, Burma, Côte d’Ivoire, Egypt, Honduras, India, Iran, Kenya, Nepal, Pakistan and Turkey. Dismissals of workers due to their trade union activities were reported in many countries. In Bangladesh, six garment workers on strike for a pay increase and settlement of outstanding wages died after a police intervention.

Union busting and pressure continue to be widely used by employers. In several countries, companies threatened workers with closure or transfer of production sites, should they organise or join a trade union. Often employers simply refused to negotiate with legitimate workers’ representatives while the authorities did nothing. Some labour codes were amended to permit more "flexibility" and to unravel social welfare systems which often impacted the existing industrial relations systems and thus curtailed trade union rights.

Another negative effect of the economic and financial crisis is that more and more workers are forced into various forms of precarious work. Indeed, the ILO now estimates that 50% of the global workforce is involved in vulnerable work. This affected workers in export processing zones, especially in South East Asia and Central America, domestic workers (especially in the Middle East and South East Asia), migrants as well as agricultural workers. It is worth mentioning that women represent a significant majority of the workforce in these sectors. Furthermore, the growth of informal employment and the development of new "atypical" forms of employment was seen across both regions and industrial sectors. The difficulties these workers face to organise or exercise their trade union rights are directly related to their highly vulnerable position in the labour market.

Where legislation protects some trade union rights, this often comes with restrictions. Fundamental rights remain restricted for many categories of workers, including public employees in several countries. Severe restrictions or outright prohibition of strikes also exists in a large number of countries. Furthermore, complex procedural requirements, imposition of compulsory arbitration and the use of excessively broad definitions of "essential services" provisions often make the exercise of trade union rights impossible in practice, depriving workers of their legitimate rights to union representation and participation in industrial action.

2009 was the 60th Anniversary of the ILO Convention on the Right to Organise and Collective Bargaining, 1949 (no. 98). Countries such as Canada, China, India, Iran, the Republic of Korea, Mexico, Thailand, the United States and Vietnam have still not ratified it. Thus, approximately half of the world’s economically active population is not covered by the Convention. Even when ratified, implementation of this vital Convention is frequently weak. Respect for the rights to organise and bargain collectively are crucial to restoring purchasing power and economic growth around the world, and governments must act to ensure that these rights are respected in law and in practice. The alternative is greater inequality, and deeper recession.

The free exercise of fundamental trade union rights by independent trade unions is also essential to the functioning of a democratic society and to a global economy based on social justice. The ITUC will continue to fight for the protection of these rights, and bring support and solidarity to the men and women who risk their jobs, their freedom and even their lives to defend workers’ rights.

Ukraine

Numerous violations took place throughout the year, with law enforcement bodies offering very little assistance. The Federation of Trade Unions of Ukraine suffered judicial persecution. The right to strike is limited, and collective bargaining is not adequately secured.

Trade union rights in law

Numerous problems exist despite basic trade union rights being recognised. The right to join and form trade unions is guaranteed by the Constitution and the 1999 Act on Trade Unions, and the law provides for extensive penalties for violating trade union rights. While registered trade unions with national status may participate in the national collective bargaining agreement, the 2004 Model Statutes and Internal Rules for public limited companies stipulate that it is works’ councils that have a mandate for collective bargaining. However, Ukrainian legislation does not provide for the establishment of such councils. The right to strike is recognised in the Constitution, but a strike can only be organised if two-thirds of the workers in the enterprise vote for it. Public servants may not strike, and the list of essential services where strikes are prohibited exceeds the ILO definition. Federations and confederations may not call a strike either. Finally, workers who strike in prohibited sectors may receive prison terms of up to three years.

Background: Ukraine, being heavily dependent on its steel exports, has been particularly vulnerable to the effects of the global financial crisis: industries ground to a virtual halt and the national currency lost over 60% of its value. About 45,000 mining and metal workers were laid off during the year. Desperate for a cash lifeline, Ukraine was offered a USD 16.5 billion loan by the International Monetary Fund (IMF), but on stringent conditions. IMF pressured the Ukrainian authorities to cancel a wage and pensions increase bill, and then withheld the latest instalment of the loan until after the presidential elections in January 2010.Laws disregarded:

The Federation of Trade Unions of Ukraine (FPU) has recorded 43 unique cases in 32 companies where the management did not comply with the Law on Trade Unions, Their Rights and Guarantees of Activity. Violations range from failure to transfer special funds that the companies are obliged to allocate to trade unions, to withdrawal of check-off facilities, to interference with unions’ internal matters and obstruction of the work of their representatives, to serious cases of trade union discrimination.

Members of the Confederation of Free Trade Unions of Ukraine (KVPU) have also suffered from anti-union harassment, and their employers often ignored the right to organise and bargain collectively. KVPU reports that turning to the courts or law enforcement bodies for protection is hardly ever effective, and sometimes the local authorities side with the employers against trade unions. However, there were also reports on unfairly dismissed trade unionists being reinstated, and KVPU has won over 20 different court cases over the last four years just against one company. Unfortunately court decisions are poorly enforced.Judicial persecution of FPU:

In different regions of Ukraine, most notably Dnipropetrovsk, Kirovohrad, and Mykolaiv, certain individuals have been filing lawsuits against organisations affiliated to the Federation of Trade Unions of Ukraine (FPU), and against trade union leaders, seeking to reverse trade unions’ decisions, suspend the leaders, and dissolve the organisations. A total of 106 complaints were lodged during the year.

All plaintiffs asked the courts to order the defendants to present internal trade union documents, such as minutes of meetings, certificates and seals, and to review the case without the defendants’ participation. Most lawsuits, even those filed in different courts, were exactly the same, and most plaintiffs were not trade union members. Many of the claims contained forged addresses, incorrect job titles of the plaintiffs, and false references to the decisions of trade union bodies that allegedly violated the plaintiffs’ rights.

Irregularities were noted in the initial stages of the court procedures. For example, on 3 February, the Leninskiy district court in Kirovohrad launched the proceedings of 11 lawsuits and conducted preliminary hearings on the same day, without sending the defendants copies of the lawsuits or the court order on the date of the main hearings. In June, the Zavodsky district court in Mykolaiv announced the initiation of proceedings of 12 lawsuits in a local newspaper instead of informing the defendants directly. Preliminary hearings were conducted in the judge’s office, with all 36 parties to the lawsuits present at the same time. On 20 November, the Kirovsky district court in Dnipropetrovsk received 18 identical lawsuits from plaintiffs living in different regions, against different defendants. The judge scheduled the preliminary hearings on all cases for 24 November. FPU turned to the Supreme Court and other authorities for assistance.

Eventually, 104 of the cases were resolved in favour of FPU or its affiliates by 1 December. However, trade unions had to dedicate considerable time and energy to the legal proceedings, which interfered with normal trade union work. As the lawsuits were clearly a concerted action without a sound factual basis, trade unions are convinced that this was a campaign to undermine FPU and its affiliates.Trade unions harassed:

The Confederation of Free Trade Unions of Ukraine (KVPU) notes that employers are resistant to the establishment of new trade unions because they consider it a violation of the tradition of workers’ obedience, deeply rooted in the communist era.

For example, workers at the agrarian complex Pushcha Vodytsa near Kyiv created an organisation affiliated to the All-Ukrainian trade union Defence of Justice, and it was officially registered before April. Since according to the law, minority unions do have certain rights, the union asked the management to provide a copy of the existing collective agreement and to organise check-off for trade union dues. The company director-general simply returned all the correspondence to the union, adding that the organisation simply did not exist. The employer maintained the same tactics throughout the attempts of the union to achieve recognition. Moreover, in July, the members of the new trade union committee were summoned to the district police branch and prosecutor’s office to give explanations on the creation of the union. Pressure on the union members decreased following the intervention of the KVPU leadership, but in December, two representatives of the prosecutor’s office visited Pushcha Vodytsa and asked many workers for written statements on whether they belonged to the Defence of Justice local organisation or not.

Another example is the KVPU-affiliated Octan trade union in the largest petrol producer in the country, CJSC "Linik". Management has been threatening union members with dismissal or wage cuts unless they resign from the union, or at least authorise the administration not to transfer their union dues. The company has also used manipulative tactics such as announcing the redundancy of 244 workers in July while in fact planning significantly fewer lay-offs. Of seven Octan members to be made redundant in October, four resigned from the union and remained employed while two others were dismissed.The union sought help from the police and prosecutor’s offices, but to no avail. As a result, in just over a year union membership shrunk from 930 to 186.Unions harassed by prosecutor’s offices: On 26 August, the Federation of Trade Unions of Ukraine (FPU) received a copy of the General Prosecutor’s Office’s representation to the Supreme Court of Ukraine. The representation, lodged on behalf of the Ministry of Justice as a result of an investigation into FPU’s compliance with the national constitution and laws, asked the court for compulsory dissolution of FPU. FPU immediately forwarded the document to its bodies and affiliates, and the FPU president requested the Prosecutor’s Office to clarify the grounds for the representation. Some FPU affiliates also turned to various prosecutor’s offices for an explanation, but the General Prosecutor’s Office never confirmed sending the representation. However, different officers reportedly treated inquiring trade union leaders in a tactless and biased way and tried to manipulate the unionists into giving negative information on trade union activities.Doubtful lay-offs at customs office:

In November, Zoya Chyzhniak, head of the trade union "Spravedlivyst", was fired from the Sumy Regional Customs Office following an investigation that trade unions perceived as biased. The deputy-head of the union Ihor Nazarenko also lost his job in what appeared to be an artificially created lay-off situation. This happened after the union, which had already submitted numerous reports on violations of labour law, demanded that the authorities start a thorough disciplinary investigation against the head of the office.

The relations between the management and the union have been strained for years. The union has been fighting for the implementation of elementary occupational health and safety measures while its activists have been intimidated, humiliated and demoted. The local labour inspectorate as well as the Ministry of Labour and Social Policy were contacted for assistance, but they did not intervene.Harassment of unionists widespread: The Federation of Trade Unions (FPU) reports that members of company trade union committees often suffer illegal dismissals, are given unjustified warnings and see their employment conditions changed for the worse. During the year, such incidents took place at the communal enterprise Lubnykhvodokanal, Motor transport enterprise No. 12327 in Zaporizhia, Afromash-IF LLC, MOU Boiler and Welding Plant No. 63 AU (Ivano-Frankivsk region), Dnipropress Plant PC (Dnipropetrovsk), Metal Constructions Plant PC (Kryvyi Rih), and Kherson Cotton Plant PC. The management of Metal Constructions Plant also forced workers to leave the union. There were reports of employers’ interference with union activities in the Land Resource State Committee.Union rights disregarded: At least 17 companies, many of them in the manufacturing sector, withdrew trade union dues from the members’ salaries but failed to transfer the money to the trade unions’ accounts, using it for the companies’ own needs instead. Furthermore, Kherson Cotton Plant PC and Kharkiv Autogenous Plant PC did not allow elected trade union representatives to enter the company premises. NDPISiU LLC in Dnipropetrovsk also refused to provide the union with any company-related information, while the Oleksandria branch of Energovugillia (Dnipropetrovsk) refused to bargain collectively.